Organisational rights are the umbrella term for a number of rights conferred to trade unions. These include the right for union officials to get time off for union activities; the right to hold meetings and the right to access to employers’ premises; the right to stop-order facilities. Organisational rights are a vital component of the new dispensation of collective bargaining the Labour Relations Act (hereafter the LRA) has introduced. This system of voluntary bargaining was implemented by entrenching the right to strike in section 23 of the Constitution of the Republic of South Africa (hereafter the Constitution) and giving trade unions organisational rights contained in Chapter III of the LRA. Because of the unequal relationship between employer and employees, organisational rights are a key component to restore the power balance between these parties.
The threshold to obtain organizational rights differ depending on the type of right the union wishes to exercise. The union may require a higher representativity to obtain certain rights. Numerous factors influence this including, but limited to, the burden the right places on the employer as well as the reasons why the union intends to exercise the right. This is confirmed through section 21 of the LRA.
Section 21(2) (c) of the LRA states that a trade union, when pursuing representivity, must state which organisational rights it is interested in. Section 21(8)(b)(2)(ii) of the LRA states that an arbitrator must establish which organisational rights a trade union wants to exercise to determine its representivity. For a trade union to be granted certain organisational rights, like the right to disclosure of information contained in section 16 of the LRA, the trade union’s members have to be the majority of employees at a workplace while for other organisational rights, like the right to access to the workplace (section 12 of the LRA), the union only has to be sufficiently representative.
In order to understand this distinction we must first determine what is meant by being “sufficiently representative”? A sufficiently representative union is granted organisational rights contained in section 12, 13 and 15 of the LRA (right of access, right to stop-order facilities and the right to leave for trade union activities respectively), subject to either a collective agreement or an arbitration award. The term ‘sufficiently representative’ is not defined in the LRA. This allows the parties a measure of flexibility when defining the term. Sufficiently representivity means something different from majority representation. The arbitrator shouldn’t only consider the number of employees of the trade union, but also the interest of the trade union. Therefore, no definite number can be set in all cases.
In order to assist in grasping the term “sufficiently representative” section 21(b) is instructional. When an arbitrator must determine sufficient representivity, he/she must adhere to certain rules. The first is to reduce the proliferation of trade unions in a specific workplace to ensure organised collective bargaining by not overburdening the employer with administrative and financial obligations (section 21(8)(a) of the LRA). The second rule is that the arbitrator must consider the nature of the workplace, the nature of the organisational rights the union wants to exercise, the organisational history of the employer, and finally the composition of the entire workplace, section 21(8)(b) as stated above. The combination of the above elements will give an indication whether the union is in fact sufficiently representativeness.
When employees work and live on the premises of the workplace, it could be a violation of their union’s right to organise and the employees’ right to join a trade union contained in section 4 and 8 of the LRA. Therefore, the need for a union to be sufficiently representative before they could have the right to access to the workplace may also infringe on these rights when the employees live on the work premises. This is also true of workers in isolated places. If the union isn’t sufficiently representative and can’t gain access to these workers, their right to organise may be infringed upon.
The factors set out in sections 21(8) (a) and 21(8) (b) have to be weighed against each other to establish a threshold for sufficient representivity.
Thresholds for the obtainment of organisational rights can also be established by collective agreements as set out in section 18(1) of the LRA by a majority union and the employer or parties to the bargaining council. The thresholds for the right to disclosure of information and rights to the election of trade union representatives can however not be established by a collective agreement. These thresholds must be applied equally to all registered trade unions. Thresholds setting different thresholds for different trade union would therefore be invalid as set out in section 18(2). Some misuse of power could take place in these instances where a majority union and employer set the thresholds so high that it excludes all other trade unions from receiving any organisational rights. There is a remedy against these kinds of actions. Collective agreements can be scrutinised in view of section 23(2) of the Constitution and sections 4 and 8 of the LRA which contain the basic rights of employees and trade unions.
Due to the political pressure placed on government and business numerous changes to section 21 have been implemented. This finds fruition in section 21(8C) (b) which states that an arbitrator may grant sufficiently representative rights to a union which has substantial interest and or substantial numbers in the workplace. For example, a union may only have 15% representivity in the workplace. This does not sound like a substantial number, but if that employer has 10 000 staff members this equites to 1 500 employees. There may be strong arguments that this union should have sufficient rights in the workplace.
In conclusion, the main reason for granting sufficient rights lies in the protection of employees i.e. union members. Where there is opportunity for exploitation of workers the need for a union increases and the rights contained in section 12, 13 and 15 may be granted.
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